What Would the Current Court Have to Do to Compare to the Anti-New Deal Court?

Rick Pildes

As tensions mount between the Obama administration and the Supreme Court over national legislation, in cases such as Citizens United and the pending health-care cases, commentators have increasingly invoked FDR's confrontation with the Court in the mid-1930s as the closest historical parallel. A NY Times story today highlights this analogy. At a very general level, the FDR-Court conflicts are indeed the most appropriate starting point for comparative historical perspective on today's conflicts.

But I think there is too little appreciation, even among many scholars of constitutional law, over just how profound, sustained, sweeping, and consequential the mid-1930s Court assault was on the New Deal and FDR. We are all aware of the most visible landmarks of that era, such as the Court's invalidation of the National Industrial Recovery Act or, perhaps, the Agricultural Adjustment Act. But the Court's confrontation over a 17-month period with FDR was far more pervasive than these famous individual cases suggest. To gain deeper historical perspective on comparisons between the 1930s and today, consider this question: what would the modern Court have to do that would be equivalent to the sustained assault on the New Deal of the 1930s Court? Would invalidating the health-care act, along with decisions like Citizens United suffice, or would much more be required?

In a recent article on the relationship between the Court, the political branches, and popular opinion, titled Is the Supreme Court a "Majoritarian"Institution?, I tried to provide deeper historical perspective on how much more pervasive and sustained the confrontation was between the Court and the political branches than many commentators today realize. Here is a brief excerpt:

First, the Court’s challenge to the political branches was far more breathtaking than many recall.We are all aware of the major highlights – the Court’s invalidation of the National Industrial Recovery Act (NIRA) andthe Agricultural Adjustment Act (AAA).But consider the range of national and state legislation and presidential action the Court held unconstitutional in one 17-month period starting in January, 1935: the NIRA, both its Codes of Fair Competition and the president’s power to control the flow of contraband oil across state lines; the Railroad Retirement Act; the Frazier-Lemke Farm Mortgage Moratorium Act; the effort of the president to get the administrative agencies to reflect his political vision (Humphrey’s Executor);the Home Owners’ Loan Act; a federal tax on liquor dealers; the AAA; efforts of the new SEC’s attempt to subpoena records to enforce the securities laws; the Bituminous Coal ConservationAct; the Municipal Bankruptcy Act, which Congress passed to enable local governments to use the bankruptcy process; and, perhaps most dramatically, in Morehead v. Tipaldo, minimum-wage laws on the books in a third of the states, in some cases, for decades.Some of these decisions have withstood the test of time, but most, of course, have not.

In the summer of 1935, more than 100 district judges held Acts of Congress unconstitutional, issuing more than 1,600 injunctions against New Deal legislation.Moreover, at least some of these issues cut to the bone of the average person; a window into the salience of the Court’s actions is provided in the comments of the founder of the ACLU, at a town meeting, who said: “Something is seething in America today. . . We are either going to get out of this mess by a change in the Court or with machine guns on street corners.” What would the modern Court have to do, and in what context, that would come close to all this?

Keep in mind, also, the dramatically different political environment then and now. FDR's 1936 election is still the greatest landslide in modern presidential history; he won nearly 61% of the popular vote and prevailed in the Electoral College with a 523-8 vote. In the wake of the election, the Democratic Party controlled 72% of Senate seats and 74% of House seats.

Remarkably enough, then, the FDR-Court confrontation involved the most popular President in modern American history, with a Congress his party controlled overwhelmingly, confronted by the most aggressive Court in American history. I will have more to say in subsequent posts about how to think about who won that controversy. But while the New Deal period is the apt place to look for roughly comparable analogies to the present moment, it is also important to realize just how different that moment was -- in terms of both the Court and the political branches -- than where we are for now.

In the summer of 1935, more than 100 district judges held Acts of Congress unconstitutional, issuing more than 1,600 injunctions against New Deal legislation.

May I instead suggest that the New Deal's imposition of full blown progressivism was the most fundamental change in federal governance up to that point in American history and was a "profound, sustained, sweeping, and consequential" assault on Article I's limitation of Congress to enumerated powers.

As noted in the above quoted passage from your book, constitutional opposition to this expansion of federal power was not merely limited to a recalcitrant Supreme Court, but over 100 district courts issuing in incredible 1,600+ injunctions in just one summer.

Afterward, the elected branches went to war with the judiciary and eventually the pressure and a cadre of new judges compelled the courts to rewrite the Commerce Clause into a general police power over economic activity.

The Obama administration is arguably the second most successful president of the left since FDR and Obamacare the most "profound, sustained, sweeping, and consequential" assault on Article I's limitation of Congress to enumerated powers since the New Deal.

Unfortunately, the Roberts Court is not nearly as principled as the mid-1930's Court. The so called conservatives continue to recognize the validity of the progressive judicial rewrite of the Commerce Clause, but appear to be hesitant to extend this common law general police power to allow Congress to compel Americans to engage in commerce of the government's choice.

In sum, the Roberts' Court appears to be telling the Obama administration and the Dem Congress remaining after the mass firing of 2010 that they may go no further, rather than telling them to return to the actual limits of the Commerce Clause. Hardly a radical position.

Bart beat me to it: It's not like things were going along normally, and then the judiciary suddenly got it into it's collective head to start striking down laws left and right. Rather, the legislature and executive suddenly started enacting laws making incredible new and unprecedented claims of power.

It wasn't a change in the court, any earlier judiciary would have struck those laws down, too. It was a change in the sorts of laws being presented to the judiciary.

The rulings were a mixed bag, some legislation upheld, some struck down with six or more votes, some by 5-4. The judiciary in the 1920s was more conservative than the one in the 1910s. CJ Taft himself, e.g., dissented when it struck down a minimum wage law for women.

So, how do you know that "any" earlier judiciary would strike down laws that four justices often would allow? One single different pick, such as the same President who picked Brandeis not picking a conservative reprobate, would have changed many rulings.

Different laws are brought in front of the judiciary many times. For instance, the 1960s introduced major civil rights laws that greatly increased federal regulation. They were upheld.

I don't think the sentence you exert is contradicted by your first sentence. There's no doubt that the courts struck down all of these acts, you just think they did so because the New Deal put forward so many unconstitutional ones. But of course whether these acts were actually unconstitutional is kind of the debate.

"The Obama administration is arguably the second most successful president of the left since FDR"

LBJ?

"the progressive judicial rewrite of the Commerce Clause"

I think you can find expansive reads of Commerce Power before such a "progressive rewrite;" for example the lottery cases.

1) Increased the size of government from 21% to 25% and that will easily soar to 27-28% if Obamacare is permited to come online.

2) Doubled the productiion of economically signficant (regs that cost the economy $100+ billion) with far more to come once the 2012 election is over.

3) Made the most progressive tax system in the developed world even more so by removing half of taxoayers from the income tax roles and whacked the wealthy with a sharp tax increase buried in Obamacare.

4) imposed German Zwangswirtshaft socialism (government direction of nominally private industry) over 1/6 of the economy in Obamacare and came close to doing the same with the energy industry with the combination of his enactment of massive alternative energy subsidies and the failed cap and tax legislation.

5) Nationalized GM and Chrysler in an almost identical replay of the UK Labour government's nationalization of British Leyland in 1975.

When I hear socialists and progressives claim Obama is a moderate or conservative, I wonder if they are that dishonest or that utterly clueless.

I have no doubts that our yodeler is "that dishonest [AND] that utterly clueless" as to just about any and everything he has been saying about President Obama.

Perhaps our yodeler can unbury those portions of Obamacare that he claims:

"3) Made the most progressive tax system in the developed world even more so by removing half of taxoayers from the income tax roles and whacked the wealthy with a sharp tax increase buried in Obamacare."

After reading Mitch Berman's post, presumably prompted by Sandy's invitation to have Mitch speak to his class, I wonder if Sandy's students were subjected to " ... both compulsion-without-coercion and coercion-without-compulsion ... " or either. I'm not expecting a response from Sandy.

I'd say they were subject to cluelessness, in as much as the post says nothing about taxes. But it's widely understood that the coercion of federal grants comes in at the level of *taxation*, when the federal government levies taxes in a state, and either gives them to the state government, or sends them to other states, depending on compliance.

Leaving the non-complying states to ruin their economies with double taxation, as they must replace funds the federal government has taken from the state economy, in order to fund their own activities.

Our yodeler's work of Friction would provide more light and heat in its kindling state.

Regarding Brett's hissy fit on coercion, what's coercion to those Red staters is considered free-loading by the Blue states funders with their federal taxes of Red staters. Blue staters don't mind subsidizing the Red staters, because this is one country, and all should have the benefits of healthcare.

On the cost side of the equation, the imbalance in favor of the Red states is because military bases to defend you are located predominantly in the sunbelt to facilitate training and because large western Red states need roads to supply your commodities and transship your finished products. Accidents of geography rather than politics.

One of the karmic effects of a progressively punitive tax system is that it punishes higher nominal incomes without taking in account accompanying high costs of living. In short, wealthy progressives in blue states take it in the shorts. You can fix this by adopting a flat income tax or a FAIR sales tax. Because you oppose such basic tax fairness in order to punish the "rich" and because Blue state residents are "nominally" richer than those in Red states, you are getting exactly what you asked for.

The idea that there's any sort of authentic "training" reason for the concentration of military bases in the sunbelt is cute.

As others have pointed out, there's little evidence that wars tend to be fought in good weather and pleasant climes -- and as the military's legitimate mantra is "train as you fight" the reality is that it takes severe weather to cancel training.

No, the reality is that the current configuration of bases is largely the result of a couple of generations of powerful sunbelt Congress critters steering defense dollars their way.

You obviously have not been in the military. When a training area is socked in with snow, vehicles get stuck or slide off the road and the grunts either cannot maneuver or are spending their time avoiding hypothermia and trenchfoot. In sum, vehicles get trashed, soldiers get injured and very little actualy training gets done.

When we trained in the winter in Germany, we achieved maybe 1/3 of the training effect that we did in the summer.

You obviously have not been in the military. When a training area is socked in with snow, vehicles get stuck or slide off the road and the grunts either cannot maneuver or are spending their time avoiding hypothermia and trenchfoot. In sum, vehicles get trashed, soldiers get injured and very little actualy training gets done.

# posted by Bart DePalma : 4:45 PM

And that is why wars are never fought in the winter. Someone could get hurt.

1) Because Heritage dabbled in statist tactics in an effort to provide a RINO alternative to Hillarycare does not make Obamacare any less Zwangswirtshaft socialism. (BTW, you won't get me to defend bad policy just because self described conservatives crossed the line at some point. The Tea Party formed as much in response to RINOs as it did to Obama.)

2) The economy has finally recovered most of the lost GDP lost during the recession, but the feds are still spending around 25% of GDP.

3) You on the left appear to understand that taxation on an act dicourages the act when it come to things like smoking, but not with wealth creation.

What it makes it is, unlike LBJ's total government responses, something that tries to partner and preserve a role for private entities. Would you actually prefer a straight up government program to a regulated private sphere? It's all 'socialism' to you I guess...

"taxation on an act dicourages the act when it come to things like smoking, but not with wealth creation"

Ah, but before you were ascribing a punitive motive, something different. Notice that even public health nannys don't think they are "punishing" smokers for taxing their smokes.

I understand you'd like to package the opinions and motives of your "opponents" in a Luntz-approved catchphrase, but the real reason why most that favor progressive taxation do so is based in what I said. Again, am I "punishing" my teen-ager when I make him carry groceries while exempting my toddler from that duty, or am I recognizing that those better able to bear a burden should do so? If you want to argue that such an attitude has the effect you mention and that it is a negative one, by all means, but why falsely acribe this "punishing the rich" motive? Because it sounds catchy? That kind of thing makes it sound like you are interested more in a campaign than a discussion.

There is no effective dofference between government ownership of a business and then exercising the property right to direct that business to redistribute wealth (classical socialism) and givernment abusing its police, taxing and spending powers to direct a privately owned business to redistribute wealth. The latter approach was theorized and then put into practice by Walther Rathenau in WWI Germany and then again by the Nazis in WWII. The Austrian school economists discussed this variation of socialism in multiple works,

Our yodeler has coined a new term that might one day make its way into OED::

" ... givernment ... "

which could be applied to our yodeler's new-to-be BFF Mitt R-MONEY'$ admiration of the Ryan budget that would provide tax cuts to the wealthy on the backs of the middle class. Yes, I realize that this minting may have been inadvertent on the part of our yodeler echoing Rove talking points, but let's give him credit so he can incorporate it into a new edition of his Economics 101 that would presumably include the Nazis and socialism, with book blurbs from dead Austrian School economists. (Our yodeler apparently was a dropout of that School.)

"There is no effective dofference between government ownership of a business and then exercising the property right to direct that business to redistribute wealth (classical socialism) and givernment abusing its police, taxing and spending powers to direct a privately owned business to redistribute wealth"

Oh, that seems silly to me. The reason why the Heritage Foundation can find mandates and regulation preferrable to straight out nationalization or single payer is because there clearly is some difference, such as that one leaves a significant prescence and role of privately owned organizations, while one does not. According to your logic zoning laws equate to the government owning your house.

Obamacare applied to a home would grant the government the power to order you to renovate the home, add a new bedroom and then rent that bedroom to a homeless man, while capping what you can spend following the government's orders. Then, the government would fine the homeless man if he did not rent the room.

You offered the mistaken analogy of housing and zoning (which is a Progressive negative restriction) and the Zwangswirthaft socialism of Obamacare, which affirmatively directs every major decision in the health insurance industry.

I break down the differences between socialism and progressivism and the contradiction in terms known as state capitalism in Chapter 10 of my book here: http://obamacrisis.wordpress.com/read-a-book-sample/

The analogy dealt with your idea that government placing and restrictions on something = government owning that thing, I said by that logic zoning restrictions on private housing must equal government ownership of the housing. But the difference between full nationalization of an area, like housing or health care, and even heavy regulation of those areas, is demonstrable: in the former there are still decisions left to the private owner, in the latter there are none.

Here you actually concede that this leaves some decisions to the private insurers with that qualifier "major". Of course you think what the regulations hit are the "major" decisions (and the "every" is silly hyperbole), but the point is that under a full government program like Medicare or nationalized health care EVERY decision, big, small, major to you or to minor to you, is "affirmatively directed" by the government.

And so we are where I started, there is a difference that even you seem to concede, which, as the difference is demonstrable, is probably a good thing for you...

Go read the book. Obamacare grants HHS and some other bureacracies the power to design all health insurance coverage, determine directly or indirectly what it will cost, how and where it will be sold and what insurers may spend in running their companies. Like nationalized companies, local managers will have some residual discretion, but everything of consequence will be run by the bureacracy.

There is no effective difference between classical and Zwangwirtshaft socialism.

"Obamacare grants HHS and some other bureacracies the power to design all health insurance coverage, determine directly or indirectly what it will cost, how and where it will be sold and what insurers may spend in running their companies"

Can you provide citations from the ACA for these broad claims (well, we can probably skip the second because even the most minor regulations can "indirectly" impact what a product will cost, so there's nothing special there on its face)?

Yes, of course the insurance companies that backed the ACA, but certainly opposed extension of a public option or single payer, were backing the exact equivalent....

My book has several dozen citations to the Obamacare legislation and various government docs and regs in its three chapters on this government takeover of the health insurance industry. There is not enough room here to even begin to repeat all of that content.

By indirect, I was primarily referring to IPAB's ability to set Medicare coverage ceilings and the fact that insurers generally follow Medicare's lead. There are other penalties to cap coverage as well.

As to the insurers, the Obama administration promised to turn them into utilities with a compelled customer base. When the Senate Dems refused to impose a significant penalty for refusing to buy insurance, the insurers bailed and joined the Tea Party opposition.

I think I trust the insurers to know more about how legislation would impact them than I would whatever is in your book (which, if it follows the hyperobolic claims you make here-such as equating the tendency of insurers to follow what Medicare charges with telling insurers what their costs will be, I think I can safely ignore).

And many of these insurers plainly reacted quite differently to the proposals in the ACA than they did single payer nationalization proposals and, heck, even public option proposals. And were they all equivalent as you argue that would be strange indeed.

Alas, Prof. Pildes' current post on this topic does not provide for comments. I'm not suggesting that he open that post to comments. Rather, perhaps Prof. Gerard Magliocca might consider posting on this topic, as he has done some serious research on the subject, including his "Court-Packing and the Child Labor Amendment" in 27 Constitutional Commentary No.2, Fall 2011, beginning at page 455.

You obviously have not been in the military. When a training area is socked in with snow, vehicles get stuck or slide off the road and the grunts either cannot maneuver or are spending their time avoiding hypothermia and trenchfoot. In sum, vehicles get trashed, soldiers get injured and very little actualy training gets done.

When we trained in the winter in Germany, we achieved maybe 1/3 of the training effect that we did in the summer."

Actually, I HAVE served in the military -- 27 years in the Army active and reserve components -- which shows how foolish it is to make assumptions about people you meet on the Internet.

I don't know what kind of candy unit you were in when you were in Germany, but whne I was in Germany we did plenty of training during German winters which was no walk in the park. And yes, naturally you can get more done duirng a German summer than a Gemran winter.

But I've also seen plenty of training curtailed during SUMMERS at US bases in the South such as Ft. Bragg and Ft. Sill due to excessive heat. You can get more training done during an Oklahoma winter or North Carolina winter than during their respective summers.

No, the last consideration with military spending -- especially pork-filled military spending such as bases -- are practical matters such as the local climate.